EVOLVING IDENTITIES: EXPLORING AND PROTECTING FLUID TRADEMARKS

Creativity drives brand growth, and in today’s competitive, fast-evolving digital world, businesses constantly seek innovative ways to stand out while maintaining their identity. One such strategy is the use of fluid marks—a dynamic approach that allows brands to modify their traditional trademarks to reflect seasons, occasions, or contemporary events. Fluid trademarks are unique iterations of a base trademark that remain identifiable despite visual changes.

These marks are creative, engaging, and flexible but also very challenging in terms of legal protection. Fluid marks enable businesses to stay relevant, connect with their audience, and communicate timely messages, but they also push the limits of existing trademark laws. This blog explores the concept of fluid trademarks, their importance in marketing, the challenges of protecting them under current legal frameworks, and actionable recommendations for safeguarding these marks while preserving brand identity.

What is Fluid Marks?

Fluid trademarks are variations of the same base mark created for particular events, seasons, or campaigns, thereby helping a company gain maximum engagement with the customers. However, in doing so, fluid trademarks need to remain sufficiently similar to the base mark so that consumers recognize the source. Brands commonly employ fluid marks to create emotional connections with their audience, promote social causes, or reflect current themes.

During the COVID-19 pandemic, fluid trademarks were highly scrutinized. For example: Audi interlinked rings to make them look apart while encouraging distance. BMW spaced the iconic emblem and tacked on a message: “Thanks for keeping distance.” Starbucks put a mask onto the mermaid logo to drum up masking.

Such innovative variations both fascinated audiences and communicated such essential health requirements. These examples demonstrate fluid marks’ ability to translate innovation into public interest.

Legal Issues and safeguards for Fluid Marks

Despite their increasing popularity, fluid marks pose unique legal issues. In India, there is no specific provision that deals with fluid trademarks. Section 15 of the Trademarks Act, 1999, provides protection for a “series of trademarks,” but it applies only when all possible variations of the base mark can be foreseen in advance. This limitation makes fluid trademarks vulnerable because their dynamic nature cannot be predicted as required by Section 15.

The Indian judiciary has recognized, at times, that fluid marks should be preserved under common law principles. In Proctor and Gamble v. Joy Creators, the Delhi High Court ruled that even though there need not be an exact similarity, substantial resemblance to the primary mark could attract protection. This judgment established the principle that the basic feature of a mark should not be infringed to enable consumer recognition.

The creative aspects of fluid marks, like new designs or stylized iterations, are protected under the Copyright Act, 1957. Copyright law protects artistic elements and gives creators the right to their unique designs. Brands however, maintain adequate documentation of their creative processes, including design drafts and resources associated with it, to establish ownership and claim protection under copyright laws.

The continued use of the base mark is a must. The base mark enjoy great recognition, the fluid iteration also enjoys the acquired distinctiveness, hence also being protected. But, in McGurr v. North Face Apparel Corp., the court of the U.S pointed out that, without registering the base mark, there exists limited legal protection of an unregistered mark.

Best Practices to Protect Fluid Marks

To counterbalance the problems associated with fluid trademarks, business houses may follow these practices; –

1. Source Identity: The fluid mark changes must be close enough to the base mark so that the consumer does not lose recognition of the brand. This way, the fluid version will retain the essence of the source identity.
2. Limit Variation: Over-alterations of the mark tend to confuse the consumer and water down the distinctiveness of the original trademark. Creativity should be balanced with maintaining core brand elements.
3. Leverage Copyright Laws: Maintain records of the creative process, including designs and associated materials, to back up copyright claims in case of disputes.
4. Continuous Commercial Use: Use the base mark continuously and ensure that the fluid mark becomes known in the market. This creates a strong link between the variations and the brand.
5. Public Awareness: Communicate the relationship between the base mark and its fluid versions. This helps to strengthen consumer knowledge and build brand trust.

Analysis-

Fluid Marks in Action during COVID-19 Campaigns- The pandemic showed how brands employed fluid marks in spreading social messages in creative ways. Audi, BMW, and Starbucks redesigned their logos to focus on health and safety, which echoed well with global audiences. It showed how fluid trademarks can create deep connections with the consumer yet remain relevant during unprecedented times.

Louis Vuitton Malletier v. Dooney Bourke– In this particular case, Louis Vuitton alleged that Dooney Bourke had copied a stylized version of its multi-coloured monogram. Although the court found insufficient evidence to prove consumer confusion, it questioned the lack of clarity that a fluid mark creates in consumers’ minds about the origin of goods and services.

Use of Fluid Trademarks in India

Indian courts have witnessed an increased concern towards protecting trademarks, but fluid marks remain a grey area. There are no clear provisions based on law, so businesses depend on passing-off actions and copyright claims. Still, fluid trademarks are rich in marketing potential when handled carefully.

Section 15 of the Trademarks Act provides for the registration of a series of trademarks. However, it is restricted to variations that can be foreseen at the time of making the application. This does not meet the dynamic, unpredictable nature of fluid marks. Businesses need to balance the cost-benefit analysis of seeking registration over using copyright and common law.

Future Outlook: Reform and Innovation- As fluid marks increase in prevalence, legislative reform is increasingly necessary to adjust for their unique characteristics. Clear guidelines or even amendments to the existing trademark law of India would do well to address fluid marks directly. Until then, businesses can only rely on strategic practices and judicial precedents to protect their creative assets. The fluidity of fluid marks makes adaptability the core of branding. It ensures that businesses can outwit their competitors while still being on the safe side regarding their brand identity.

Conclusion

Fluid trademarks represent the blend of creativity and adaptability in modern branding. Fluid trademarks help businesses connect with audiences at a deeper level, reflect current themes, and communicate impactful messages. However, the lack of concrete legal frameworks is a significant challenge. That is, maintaining strong ties to the base mark, leveraging copyright protections, and promoting public awareness can all potentially mitigate the risks of fluid marks. But these marks demonstrate instead that innovation and identity are not separate forces but in fact complementary ones that drive brand success.

Fluid mark require proactive legal reform and strategic innovation, ensuring companies can leverage their potential while protecting the heritage of their brand in that dynamic marketplace

References

1. The Trademarks Act, 1999.
2. The Copyright Act, 1957.
3. Proctor and Gamble v Joy Creators, 2011 (45) PTC 541.
4. Leonard McGurr v. The North Face Apparel, V.F. Corp., et al. (2:21-cv-00269).
5. Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108 (2d Cir. 2006).
6. Shampa Dev & Avishek Chakraborty, “Protecting the Shape-Shifting Identity: An Analytical Study of Fluid Trademarks under the Trademarks Act, 1999”, SDMIMD (2023).

Vedant Pujari, Partner

Ahana Roy Chowdhury, Senior Associate

Aditya Singh, Intern